Congress Mulls Exempting Home-Care Workers From Wage Laws

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By Ben Penn

Republican lawmakers are preparing a bill that would restore home-care workers’ exemption from federal wage laws, in case the labor secretary doesn’t act, a spokeswoman for Sen. Pat Roberts (R-Kan.) told Bloomberg BNA.

A 2015 Labor Department regulation extended minimum wage and overtime protections to some 2 million employees who provide in-home care for the elderly and people with disabilities or injuries. The industry’s lobby spent the first quarter of 2017 discussing with Congress a “legislative path to restoring the exemption versus a regulatory path,” William Dombi, vice president for law at the National Association for Home Care and Hospice, told Bloomberg BNA via email.

NAHC is hoping the DOL, under recently confirmed Secretary Alexander Acosta, will be open to issuing a new regulation to reverse the Obama-era rule. The group plans to urge the department to make this a priority. “We agree with Senator Roberts that an administrative fix is the better approach,” Dombi said May 9.

Roberts, a member of the Senate labor committee, has talked with Acosta about the issue and will continue to advocate for a new regulation, the spokeswoman confirmed. If Acosta and his staff don’t move on the matter, the senator will pursue his own measure, she added.

Roberts believes the administration will take care of this issue, preventing the need for legislation, the senator’s spokeswoman said May 9. His office remains engaged with House counterparts and will introduce a bill if necessary.

Roberts, along with 13 GOP co-sponsors, introduced similar legislation in 2015 to nullify the DOL rule, but it never received a vote.

Obama administration officials and Democratic lawmakers argued that the regulation was a critical step to improving wages in a booming occupation that involves demanding work.

Does Rule Help or Hurt Workers?

“These workers have fought long and hard to simply have minimum wage and overtime rights, and the fact that there are any legislators who would like to undo that is appalling,” Caitlin Connolly, who directs the National Employment Law Project’s “Home Care Fair Pay” campaign, told Bloomberg BNA.

The Obama administration said in 2013 that a Fair Labor Standards Act exemption for employees providing “companionship services” and “in-home” domestic services only covers those who work directly for a client, rather than through a third-party agency or other business.

NAHC was part of a coalition that unsuccessfully petitioned the U.S. Supreme Court to review and invalidate the Labor Department’s regulation, which took effect in late 2015.

The association is continuing the fight to erase the regulation because early stages of implementation have been rocky, to the detriment of workers, consumers and providers, Dombi said in April. He said employees are actually earning less because their hours are being capped to prevent time-and-half overtime pay.

The new administration, keen on reviewing Obama regulations that it believes eliminates jobs, may be more likely to issue a new regulation that maintains the pre-2015 home-care exemption.

A DOL spokeswoman declined to comment.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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